ALLEGED MURDER.

New Zealand Mail, Issue 1219, 12 July 1895, Page 40

ALLEGED MURDER.

THE CHARGE AGAINST NICHOLSON. His Honor the Chief Justice took his seat on the bench at 10 o'clock on the 12th June at the Supreme Court, when the trial of Charles Nicholson for the alleged murder of Annie Friend on the 31st March, in Little Hawkestone street, was continued. Sergeant-Major Eamsay deposed that the woman Friend called at the Lambton quay police station on Saturday, March 30 th, and made a complaint. Cross-examined: He did not take any action beyond advising her to call again and lay an information. He concluded from her appearance, and from what she said, that there had been a drunken brawl. That was his reason for not taking action: he heard of so many of these brawls. To His Honor: She said Nicholson had been knocking her about, and that she was afraid to go back to his house. She presented a dissipated appearance, and smelt strongly of drink. His Honor: You have spoken of a drunken brawl. Do you not think the woman's appearance was consistent rather with the idea of a violent assault ? Witness: She was bruised about the face, and looked as if she had been drinking. His Honor : Do you say this because you think you ought to defend yourself ? No.

And yet seven witnesses have sworn that she was quite sober ? —She could walk quite straight, but she had that smell of stale drink about her.

And that was the only advice you gave her ? —I told her not to go near the man's place again, as she had no right to be there, and that she might call again on Monday and lay an information against the accused. She promised to do so. The Crown Prosecutor then entered upon his address to the jury. He said the case was one of those which disclosed nothing short of murder on the part of the accused. Reckless violence regardless of consequences and ending in the death of the assaulted person amounted clearly to the crime of murder. In this case there was no single palliating circumstance which told in favour of the prisoner—unless it were the absence of evidence that he used any weapon. That -was the only circumstance which could be enlarged upon in his favour. Even if that were so, it might be a question whether there is much difference between a man who used a weapon towards his victim and a strong, able - bodied man who persistently during a long period committed a series" of assaults upon an absolutely defenceless and unresisting woman, the banging about which she received beating her at last into a state of insensibility, and the man then leaving her for hours and hours in this state of unconsciousness to die. It might be a question whether these circumstances did not disclose an offence as grave as that of a man who upon a sudden impulse of anger fired a pistol with fatal effect. The evidence in this case disclosed no palliation in the brutality which beyond all question was shown by the prisoner to this unfortunate woman. That the woman should have submitted over and over again to violent attack without resisting and without doing more than expostulating and begging her assailant to leave her alone and that after such assaults she should go back again to the man was a somewhat remarkable phase of human nature, although he believedit was not uncommon to hear of a woman who formed an attachment to a man of brutal character, and who in spite of blows and insults continued iu close asso-, ciation with and strongly under the influence of such a man, unwilling to leave him. Coming to the facts of the case, the learned gentleman went on to say that whatever palliation might be suggested on the ground of drunkenness there was no evidence that either the man or the woman was drunk on the day upon which the woman received the injuries from which she died. But even if the woman had not been sober surely it was no excuse or palliation for the man to say that not only was his victim unresisting but that she was also stupefied by drink ? It would only carry the affair from bad to worse. Mr Gully contended that the accused's expressions on the Saturday showed he meant to finish the woman, and that he was. reckless of the consequences. He also argued that the medical testimony pointed clearly and directly to the fact that the injuries which caused the woman's death were such as would be inflicted by the prisoner's violence on the Saturday. Mr G-ully's address lasted just half an hour.

Mr Jellicoe began his address at 10.50 a.m. He reminded the jury that the prisoner was accused of the highest crime for which a man could be arraigned before an earthly tribunal. Therefore the jury were sitting in judgment on the life of a fellow-creature. Their decision must rest upon the evidence and upon the evidence alone. As the Crown Prosecutor had pointed out all suggestion and' conjecture must be abandoned; he (Mr Jellicoe) appealed to them to abandon also all feeling which a case of this kind naturally involved. When a. man struck or assaulted a woman none of us could help or resist or suppress our indignation at the cowardly act of the ruffian who did it. But such feeling must net be allowed to influence us in deciding so momentous an issue as was involved in this ease. The learned gentle-

man went on to argue that the evidence showed that the man and the woman in this case had for three weeks or a month prior to the woman's death been living together a life of dissipation. They were not married, and they both thought as little of brawls and assaults as they did of the weather. Mr Jellicoe passed on to contend that there was nothing in thg evidence to prove that the woman's death resulted from injuries inflicted by the accused —nothing in the evidence to disprove the probability that the woman had received the fatal injury in a drunken accidental fall. Medical authorities established the fact that spontaneous rupture of the cerebral blood vessels and effusion upon the brain frequently occurred in the case of intemperate and elderly people. As a matter of fact, the Crown had failed to negative the possibility of the death of the woman having resulted from six other causes than that of direct injury inflicted by the accused. These possible causes were:— (1) The possibility of the clot of blood on the brain commencing to form before the Saturday; (2) the consistency of the facts with the theory of an accidental injury from behind; (3) an attack of apoplexy as the result of a violent struggle; (4) staggering against a wall on the part of the woman herself; (5) an accidental fall; (6) spontaneous rupture and effusion. Having argued at length upon the reasonableness of each of these probable causes of the injury resulting in death, Mr Jellicoe submitted there was absence of expert evidence free from bias, and that the jury were placed in the awkward position of being asked by the Crown to select one of seven probable or conjectural causes for the woman's death. The learned counsel went on to suggest that the fact of the last clothing worn by the deceased being wet through, and that the ulster had large patches of blood upon it was consistent with and supported the theory that she was staggering about in drink on the Friday or Saturday night, and that she had met with an accidental fall either inside or outside the house, which fall produced the injury that caused her death.

Mr Jellicoe had been speaking for an hour and a half when the foreman asknd His Honor if it was possible to recall a witness, as one of the jurors wished a witness recalled.

His Honor said it was quite competent for a witness to be recalled at any stage. Sergeant-Major Eamsay was then recalled, and asked if the woman Annie Friend was wearing an ulster when she went to the police station on Saturday. He said she was not; she had on a light dress. Mr Jellicoe continuing hi 3 address, went on to analyse the evidence for the purpose of demonstrating that there was no positive or substantial ground for the case for the prosecution, viz., that the woman died from injuries inflicted by the prisoner. He suggested that the meat cooked by the woman on the Saturday was a pluck, and if that was so, the jury would be able to determine whether the blood on her clothing could not have come from that article of food. If she had received a rupture from a fall the previous day her nose might have commenced bleeding from the excitement in the morning, which was intensified by the liquor she consumed at the midday meal, without any interference on the part of the prisoner, at all, and there was no evidence on the part of the prosecution that the bleeding that afternoon was brought about by any apt of the prisoner. His Honor: Do I understand you are telling the jury that, when there are several witnesses who talk about scieaming that afternoon and the woman saying, "Stop it"? Mr Jellicoe said beyond that there was no evidence that the blows were given by the prisoner, because no one saw what was going on in the house at that time. Again, the prisoner and the woman were evidently on good terms at 7 o'clock in the evening, when they went to the Shamrock Hotel, and after that no one saw them until the Monday morning; and therefore if they were to agree with the prosecution that the woman's death was caused by the man striking the woman's head against a flat surface, that must have been . on the occasion spoken to by Mrs Sullivan and Mrs Dickson, and on . that occasion only, and therefore they were driven to accept the testimony of those two witnesses implicitly before they could arrive at a decision adverse to the prisoner. There was only a possibility that the woman's head came in contact with the wall, but were they going to accept that possibility nnless every other possibility consistent with the prisoner's innocence was negatived by the Crown? As to the blood on the wall-paper and, clothing and other articles, there was no evidence that it was human blood. Assuming that the Crown had established the fact that the woman's death had been caused by the prisoner, then it was necessary for them to consider whether the prisoner's offence was that of murder or manslaughter. None of the witnesses had any apprehension that death was likely to ensue from the way this man was using his fists, and did not feel called upon to interfere. The woman did not think that her life was in danger, for she went back to the house where she had been assaulted after having been advised by SergeantMajor Eamsay not to go back. Drunkenness, it had been said by the prosecution, was no excuse for crime, but his experience of Courts of Justice was that where a person was.a chronic drunkard his condition was regarded as being to some extent on a par with the insane, and he contended that such a person was entitled to some amount of consideration. There was every reason to believe that the man was drinking at this time, and that being so, were the jury going to suggest that he knew the use of his fists in the manner alleged by the Crown was likely to cause death ? Further, the man did all he could for the woman on the Monday morning, and did net act in

a manner which showed he was wishful for the Woman's death. Why should he want to kill her ? There Was ah entire absence of motive* and even if he had meant the threats he was said to ha¥e Used in the mtjrttihg it was established that they had again assumed friendly relations by the time they took* their midday meal. They did not know what provocation the woman had given the prisoner; and without any evidence on that subject til's reasonable inference that there was provocation reduced the crime from murder to manslaughter. In conclusion, he said Detective Neill and Constable Black had behaved in this case as he had seldom known the police in this country to behave, and they had not only brought forward all the evidence they had collected in the interest of the Crown, but they had brought forward all the evidence they had been able to get together in the interests of the prisoner. Mr Jellieoe's address occupied tour hours and seven minutes. ; His Honor* in BUihiriihg Up* Said tile real . issue was Whether the prisoner, was guilty of murder Or manslaughter.. lii drder to' .convict the prisoner of murder it wOuld be necessary, they should be satisfied that the prisoner had the intention to take the woman's life, or that he had the intent to do her serious injury which he knew would be likely to cause death, and in regard to •which he was reckless whether death ensued or not. They were unable to form an opinion about a person's knowledge or intent except from the circumstances surrounding the case; and they must form their opinion from the nature of the act which the person had done, unless expressions were used at the time or aftewards, , which indicated he had that knowledge or intent. In the absence of any such expressions, they must rely upon what they inferred to be the knowledge the person had from the nature of the act he was doing. They must judge for themselves in this matter; If they should come to the conclusion he had not that knowledge, then the question remained whether the prisoner was guilty of manslaughter* In both cases the main question was whether they were satisfied the prisoner's violence caused the death of I the woman. If they were satisfied his violence did cause her death, and that he did hot intend to cause her death, and had hot the knowledge that the Violence he was using was likely to cause her death, then they would of course acquit him of the murder and convict him of the manslaughter. It must be a satisfaction to the jury that they had had a very able defence from Mr Jellicoe, who had put before them all the points capable of being put, and, they might possibly come to the conclusion, bad put some thories which were not supported by the evidence His Honor then reviewed the evidence of the witnesses at considerable length, and, in conclusion, he said in his opinion it was for the jury to judge whether the Crown had satisfied the onus of proof so far as it lay upon them; whether, in the absence of other evidence of other facts, that that fact which the Crown had proved was to be accepted in the absence of any other proof which justified any other assumption. Then, were they satisfied upon the evidence offered by the Crown that the woman's death was caused by the prisoner's violence, and was it a case in which, if there was no other fact to be proved which would justify a different assumption, that the proof of that other fact lay upon the prisoner.

His Honor's address lasted for an hour and a quarter. At 5.15 p.m. the jury retired, and returned 40 minutes later with a verdict of manslaughter against the prisoner. His Honor, in passing sentence, said it was unnecessary in a case of this sort to refer to the enormous number of times the prisoner had been in the hands of the police for various offences. The evidence that had been adduced showed he was a man who would give way to acts of violence, and had no control over himself, and no pity for this poor, unfortunate woman, who was really beaten to death by him, although the actual external injuries were not very severe. He thought there was a difference between this case and one in which a deadly instrument was used, and there was some suggestion that the woman was drunk, although he (His Honor) did not think so himself. It would be his duty upon the verdict the jury had found to sentence the prisoner to a very long term of imprisonment. He thought on the whole the callousness he exhibited was really worse than the violence he had used. He had left this woman lying for a day and a half in a state of unconsciousness, and, whether he was afraid he would be the crime he knew he had comnot, or whether it was mere it showed a very great hardness The sentence of the Court was that the prisoner be imprisoned in the Terrace Gaol for ten years with hard labour.

His Honor informed the jury that they would be.excused from further attendance during the present session. The Foreman said the jury had asked him to express their appreciation of the services of Detective Neil! and Constables Black and Hutton in dealing with the case.

His Honor remarked he dared say the police officers were very glad to have such an expression of opinion.